Lord Bach: My Lords, climate change is obviously a global issue. The United Kingdom is giving increasing attention to understanding climate change impacts on both the UK and on other countries, particularly developing countries, in order to help them assess their vulnerability. Last year, Defra funded a global assessment of climate change impacts by sector. This report highlighted that the most severe negative effects are most likely to occur in less developed countries and that up to 70 per cent of the world's coastal wetlands could be lost by the 2080s.

Lord Lawson of Blaby: My Lords, is the Minister aware that there is increasing evidence that adaptation to any problems of climate change—whether man made or natural—is far more cost effective than attempts at mitigation, which cannot work if they are not carried out on a global basis, which, of course, they are not? The Minister referred to the issue of rising sea levels but is he aware that the problem could be more effectively met by improved sea defences? This would be a much more sensible use of funds than the vast amounts that are being spent at the present time in a doomed attempt to mitigate the effects of climate change.

Lord Bach: My Lords, I appreciate the noble Lord's question, but we have to take notice of the wish and requirement of developing countries to grow. It is all very well for us in the developed countries that enjoy a very high standard of living to be self-righteous about climate change and say what we can do to mitigate or adapt it, but it would not be acceptable for developing countries to stop growing because of climate change. That is why we support the idea that there should be discussions between the developed countries and those developing countries, particularly China and India, which are not signed up to Kyoto. What we need to tackle the global problem is global action. We are driving forward a complementary approach to formal target-setting. These matters are being discussed at Montreal as we speak.

Baroness Pitkeathley: My Lords, I thank my noble friend that helpful reply. Does he agree that the continued use of one particular laboratory which has questionable qualifications and results by the tabloid press shows more interest in criticising the NHS than in reporting the facts? Is he further concerned that this particular laboratory appears to derive most of its income from selling disinfectants to combat MRSA and thus might perhaps be seen to have a vested interest in achieving positive results?

Lord Warner: My Lords, consideration has been given to that although it is not the situation at the moment. However, I would say to the House and the noble Baroness that we are the first government to introduce a mandatory surveillance reporting scheme on all healthcare-associated infections. We publish the results on MRSA as part of that. The scheme is being conducted by the Health Protection Agency.

Lord Morgan: My Lords, does my noble friend agree that the Government have in part dealt with the problem of quangos through democracy; that is, dealing with a vast array of quangos in Scotland and Wales through devolution—the devolution which was so misguidedly opposed by the party opposite, whose rescue is now apparently coming from Mr Cameron?

Lord Ezra: My Lords, is it not disturbing that the interconnector should not have been operating at full capacity, bearing in mind that the spot prices for gas in the UK are substantially higher than on the Continent? Does that not suggest that our link with the European gas network is insecure, and that in the future, although the interconnector capacity might increase, we could still be vulnerable at times of peak demand? Is that not a serious situation that we face, in view of our increased requirements for imports of gas?

Lord Davies of Oldham: My Lords, it is a serious situation, which is why the Minister for Energy—my honourable friend in the other place—is chairing the Energy Council meeting tomorrow where he intends to raise this issue. It is also why the chairman of Ofgem has written to the European Commission indicating why the situation is utterly unsatisfactory. It is also why key figures in the European Commission have indicated that the imperfections in the market are not tolerable.

Lord Davies of Oldham: My Lords, the methods we are pursuing at the European Commission are the appropriate channels for effective action, and we have made it absolutely clear that we expect action to be taken. The noble Lord is right that there are anxieties for the very big consumers of gas in view of the shortages. We expected the interconnector to bring more gas into the UK than has proven to be the case. The noble Lord is right that the price being offered is high enough and competitive. Therefore, there are imperfections in the market which alone explain why this gas is not available.
	It is important to the Government that there has been substantial private investment in terminals for LNG because we will be dependent on additional storage facilities, and we are pleased to record the fact that several major terminals will come on-stream in the very near future.

Lord O'Neill of Clackmannan: My Lords, does my noble friend agree that two inquiries previously conducted by the European Commission have been unable to discern anything other than the illiberalisation of the German grid system as the simple and obvious reason why we cannot get adequate supplies of gas through Europe from the Caspian and other areas? Is it not up to the Commission to take proper action against the German authorities, who neither wish to introduce proper liberalisation nor effective regulation of the throughput of gas through their grid system?

Lord Davies of Oldham: My Lords, our gas supplies are certainly sufficient to guarantee that domestic consumers will have all their needs met throughout this winter, as will the vast majority of industry. However, certain sectors that are high consumers of gas frequently reduce their demand for it when gas prices reach a certain level, because it is in their economic interests to do so. We think that that process may happen over the course of this winter.

Lord Skelmersdale: My Lords, the House will be most grateful to the Minister for repeating the Statement on the report of the Pensions Commission that was made in another place a few hours ago—which makes my life considerably easier, as did the Minister's arranging to have the full report delivered to me before 9.30 this morning. I am grateful for that. I have therefore had more time to study the report than most of your Lordships, although this is not the time to go into too much detail.
	As far as the Statement goes, the major surprise is that the Government decided to have a Statement at all given the Chancellor's reaction to at least part of the report. The Statement starts not with a reaction to the report but with government spin on what they have done for pensioners since they came into office. What the Statement does not say is what else has been happening in this area since 1997. To quote the Secretary of State in the Statement, I too
	"believe it is important to consider them in this context".
	Since 1997, more than 10,000 pension schemes have started winding up. Currently, 45 per cent of UK workers—12.7 million employees—have absolutely no pension provision: a rise of 5 per cent since 1997, or 2.5 million extra people. Labour's pensions tax, introduced by Gordon Brown in 1997, has cost pension funds, and thus pensioners, £5 billion a year. Last year, the Turner commission estimated that 9 million people are not saving enough. The household savings ratio has almost halved since the Government came into power. Some 80,000 people have lost retirement savings because their company pension schemes have closed. More than 5 million pensioners are now subject to means-testing, nearly half of all pensioners. Typical pensioners have seen more than one-third of the increase in the basic state pension snatched back in higher council tax. The Institute of Economic Affairs has estimated that the UK's unfunded public sector pension liabilities are a mammoth £817 billion.
	The first thing I would say about the report is that it is a very professional and powerful one, as we would expect from any body chaired by the noble Lord, Lord Turner. It also follows on very neatly from the interim report published last year. First we were invited to review the problems of future retirement income sufficiency, and now we look at the commission's preferred solutions. That has been made very much easier for all of us by the leaks we have seen over the past week or so.
	When I was a horticultural student, I was taught that leeks had the highest gross margin of any extensive horticultural crop. That is clearly the case today as the leaks have been substantially correct. For example, the means-testing of pension credit is totally discredited and my party's stand on this has been thoroughly vindicated. The proposed National Savings Scheme is almost exactly as we have been led to expect, though in my reading of the report, I have not found anything to suggest that it should be run by the state. Just as well, as that would annoy many on the Benches behind me. However, where the state does come into the picture is with a 1 per cent contribution. The scheme should aim, says the commission, to give a 45 per cent replacement rate for the median earner. There are obvious problems here, not least for the self-employed and those employed in small and medium-sized businesses.
	There is not much difference, either, in what we expected as far as the state pension is concerned. It is suggested that this should be linked to both earnings and residency. The second state pension should continue to be contributory but ultimately become flat rate. The oft-mentioned arrangements for carers should be improved. On state pension ages, the report is less prescriptive, commenting that they will have to rise broadly in line with increases in life expectancy, so that each generation spends a roughly similar proportion of adult life contributing to, and receiving, a state pension.
	We could have had a useful debate solely on the subject of state pensions, though I suppose that the usual channels would see this as being too restrictive. None the less, it is a debate we must have, and I hope that the Minister will be able to persuade the Chief Whip of that imperative and in government time at that.
	Finally, the commission's report is based on the premise that there is no immediate crisis in average pensioner income levels today. However, it makes it crystal clear that unless policies change, pension provisions will become increasingly inadequate and unequal over the medium term, which is described as 10 to 40 years ahead. We are therefore glad to see from press reports that the Prime Minister intends to grasp this particular nettle and that the Government will publish their proposals in the spring. I note that this is to be in the form of a White rather than a Green Paper. I cannot help but wonder whether this is the right way to go about the Government's professed desire to get a consensus going on this issue, not least in the Cabinet itself.

Lord Barnett: My Lords, I apologise for not having read the 764 pages of the report and its appendices. I have glanced at some of them. Will my noble friend correct more emphatically than he has already in the Statement, the fact that the proposal to retire at the age of 67 rather than at 65 will, on the assumptions made in the report, not happen until 2040? The plain fact is that the media has left a clear impression that it will be tomorrow. It is important that it is made crystal clear that the assumption is 2040.
	Indexation with earnings, as my noble friend said in the Statement, is proposed to start in 2010-11. Will he confirm that the Government are not ruling out that proposition in any circumstances? He referred to things being simpler to understand. It would astonish me, and I assume that it would astonish my noble friend, if the average member of the public reads the 764 pages. I suggest that it would be helpful to the great public debate that has been suggested if a simpler, shorter booklet were published summarising some of this massive report. I do not know the price would be; usually that is clear but in this case it is not.
	Does the Minister nevertheless accept that this excellent report, despite everything that has been said about it, raises more questions than answers in relation to the serious debate that will take place? The real answer remains for a consensus, although I did not detect any from the Opposition spokesman. Of course, the noble Lord, Lord Oakeshott, has already indicated—

Lord Hunt of Kings Heath: My Lords, the noble Lord is right about the suggested state pension age. I think I made it clear in the Statement that it would be gradual. The recommendation is a proposal; it is not a definitive statement by the Pensions Commission. Essentially, starting in 2020, in 10 or 11 years the pension age will gradually go up by one year. In another 10 or 11 years it will go up by two years. He is absolutely right about that.
	On indexation, I repeat that nothing has been ruled in or ruled out. We have to look at these matters carefully, and the issue of affordability will be a very important consideration. On my noble friend's third point about simplification, I do not know the price, but I shall find out. I agree with my noble friend. The Executive Summary is over 40 pages long, so if we are to have a meaningful debate with the public, the Pensions Commission needs to find a way of putting its message over. The commission is certainly happy to carry on and help in the debate, so I am sure that I shall be able to refer this matter on.

Baroness Hollis of Heigham: My Lords, I welcome the tone of the Statement and particularly my noble friend's repetition of the Government's support for the broad framework outlined in Turner. Like my noble friend, I am very proud of what our Government has done for poorer pensioners, especially women.
	Does my noble friend agree that one of the key tests of the sustainability of the report is what happens when you put up the gender filter, given that two-thirds of pensioners are women who, on average, have only a third of the income of men in retirement? Does he agree that the Turner report offers a set of propositions which are fair to women because they recognise women's unwaged work as well as waged work; because they would improve women's incomes in retirement by providing a 45 per cent replacement income; because they address simplicity by rolling out a universal state pension based on residency; and because, as a result, they encourage savings, which are crucial if women are to lift their income in retirement?
	Does my noble friend further agree that at the core of all of those proposals is a universal basic state pension based on residency? Does he accept that if the Government are to respond coherently and comprehensively, as I hope they will, they cannot and must not retreat back into tweaking an already over-tweaked system? That process would add to the costs and to the complexity, and still too many women would be outside the entitlement they need in old age?

Lord Fowler: My Lords, surely we can agree that we should aim to get some political consensus in this area given the long lead-in time for pensions. Is it not the case that there is now widespread agreement with Turner that there should be a better state pension and better incentives for saving for other pensions? Does the Minister not understand that this consensus will be destroyed if the Government persist in their policy of having one retirement age for the public sector and another retirement age for the rest of the labour force? It is not true to say that this has been got up by the press? The aim to have a higher retirement age in the public sector was set out in the Government's own White Paper. The Government have done a U-turn upon their own policy. The Minister said that one of his tests was that policy should be fair. Does he consider this policy fair?

Lord Mackie of Benshie: My Lords, I was very pleased to hear in the Statement that the Government were agreed that £69 a week was not an adequate pension by any means. The Minister is aware, I know, that many British pensioners are living on or receiving far less than they would if they lived in Commonwealth countries overseas. This, I understand, saves the Government about £400 million a year. I would like know—this is relevant to the Statement—whether this is a permanent feature that the Government will build into their calculations of the cost.

Lord Hunt of Kings Heath: My Lords, it will be a matter of great regret to me and other noble Lords when the right reverend Prelate finally has to retire and leave this House. Indeed, I do not know whether any members of the independent Appointments Commission are here, but they might take notice of that. He has been a splendid Member of his House.
	There are two points to be considered. One can think of many professions or people doing heavy manual labour where the prospect of working to a greater age is not particularly appealing. The Pensions Commission made some helpful points. It made it clear that we should look at training possibilities. I have come across a number of training schemes that took teachers and trained them to become inspectors of nurseries. They wanted to get out of the classroom but still had a great deal to offer. There are other opportunities.

Earl Peel: My Lords, I understand that explanation, but under the Bill as it stands the surplus rights of common that have not been registered will be treated in one way and the surplus rights that have been registered—albeit incorrectly—will be treated in a different way. Because the two are being differentiated, it seems that the Bill has inadvertently created a new type of commons right—in other words, surplus rights that have been incorrectly registered. I hear what the noble Baroness said, but I genuinely believe that she is incorrect.

Baroness Byford: My Lords, in Committee we had many contributions on fees and the amounts that might be charged. The noble Lords, Lord Williams of Elvel and Lord Chorley, the noble Earl, Lord Caithness, and several others spoke about their concerns with this section of the Bill. We have statements from existing associations of commoners that cite fees of a few pounds leading, because of the numbers involved, to annual budgets of £50,000 or thereabouts. That is modest for some of what may be bigger groupings. Such organisations work to the clear benefit of the holders of rights, the land, and probably the general public. Smaller commons with fewer commoners may not have the formal organisation at all. One reason may be that the cost of creating one could be prohibitive.
	Under the Bill, however, commons associations will be encouraged—if not enforced—even where the burden is thinly spread. We are concerned that the commoners, some of whom will have small incomes—I suspect that some will have very little income at the moment—should not be placed under the type of pressure that is becoming ever more frequent for pensioners who are faced, for example, with rapidly mounting council tax bills. We are even more concerned that the setting of unreasonable fees may force commoners to abandon their rights. Were such a thing to happen, there is no doubt that some people would be unscrupulous enough to try to take advantage of the situation.
	When we debated this matter more fully in Grand Committee, the noble Baroness, Lady Farrington, stated:
	"we envisage associations raising funds through subscriptions paid by commoners and other participants".—[Official Report, 9/11/05; col. GC218.]
	Who, in particular, are "other participants"? She went on to use the expression, "at a modest level". I believe that a "reasonable" level is probably better phraseology and our amendment uses that word. I hope that the Minister who responds will consider the amendment as a reasonable contribution which I hope will improve the Bill.
	In her response, the noble Baroness, Lady Farrington, said the setting of fees was primarily a matter for the association. Yes, that is right; but it is important that the associations set fees that are relevant and appropriate, and we feel that the insertion of our little word "reasonable" is preferable to her word "modest", as recorded in the Official Report. I beg to move.

Lord Bach: My Lords, the amendment would ensure that any fees required to be paid to a commons association in connection with the exercise of rights of common, or rights to use the surplus, or in connection with membership of, or participation in, the association, are reasonable. One of the ancillary powers given to a commons association is a power to raise money. This clause makes it clear that the power to raise money can involve the levying of fees in connection with the exercise of rights of common, or exercise of rights to use the surplus. Money can also be raised through charging a membership fee or a fee for participating in the association. These are the approaches most likely to be taken when raising money to cover the operating costs of an association.
	Where interests in a common see benefits from forming an association, be it voluntary or statutory in nature, charging a fee in connection with the exercise of rights is a generally accepted approach for providing the small level of income required for operating purposes. We do not expect any fees that are levied to be very high. The levying of fees in connection with the exercise of rights is not unusual. The Dartmoor Commoners' Council has charged a small fee in connection with the exercise of rights for the past 20 years to fund its operations—for active graziers it has been 66 pence per livestock per year and for inactive graziers, 11 pence, with a minimum payment of £5 for any rights holders.
	Many existing commoner's associations charge a small annual subscription for membership which does not appear to cause any great hardship. For example, the Federation of Cumbria Commoners, with over 500 members, charges a small annual fee for membership, which, I believe, is £10. The size of the fee is decided through a majority vote at the annual general meeting of the federation.
	Any fee for membership, or in connection with the exercise of rights, is likely to be agreed through a majority vote taken by the representative body of the association or by all participants in the commons association at a general meeting. Fees will not be imposed by some external body; they will be determined by those who will have to pay them through a majority vote. As a result, any fees levied are likely to be at a level which is acceptable to those who will pay them. The reality is that members of an association are not going to levy unreasonably large fees on themselves.
	In any event, any exercise of a statutory power necessarily implies that the power must be exercised in accordance with the rules of natural justice. So the power to set fees under this subsection already means that, as and when it is exercised, it must be done in a reasonable manner, taking into account all the circumstances, including the purpose for which any fees are being levied. That is why we do not think that the words "reasonable" or "modest" need to appear in the Bill.
	The noble Baroness asked who the other participants were who might have to pay. Apart from the commoners, they might include the owner or the owner's tenant or licensee or anyone else entitled to make use of the grazing. In addition, people such as sporting rights holders might have to pay some sort of fee to exercise those rights.

Lord Bach: My Lords, I am grateful to the noble Lord for that question. Indeed, they will have the right to acquire or dispose of land, but I point out that they are potentially able to raise money from sources other than fees. Large sums of money for capital expenditure or more significant improvements could be raised through other means—for example, entering into agri-environment schemes, wayleaves for easements or car parking charges, if that was appropriate.
	Perhaps I may give some examples. On Danby Commons—I do not know whether that North Yorkshire common is known to noble Lords—bracken control and cattle gridding were achieved through a combination of local and European Union sources of funding, including Objective 5b money. The Gower Commons initiative has undertaken cattle gridding, agricultural management and access work on commons with the assistance of money from the Heritage Lottery Fund. More than £200,000 in match funding has been provided by labour from commoners themselves on that common. And statutory bodies, such as boards of conservators, are often funded through precepts on local residents collected by the local authority through the council tax. My example there is the Malvern Board of Conservators. I am afraid that I have taken some time to answer the noble Lord's excellent question, but the answer is that there are other ways of raising money—not just in theory but in practice, too.

Lord Bach: My Lords, as we stated during the debate in Committee when we discussed this issue, an association may be wound up for a number of reasons and we must be able to provide for the transfer of its assets and liabilities in a range of circumstances. An association will undoubtedly have some assets—perhaps unspent fees or subscriptions from commoners, or property—and may have acquired rights of common that need to be dispersed. Of course, it may also have liabilities in the form of debts or outstanding obligations under agri-environment agreements. If an association is wound up, that must be done under the same procedure used to establish an association.
	Clause 37 describes that procedure, with its requirement for consultation and substantial support for the making of an order. In other words, interested parties in the association will have an opportunity to make representations about what should be done with the assets and liabilities of the association. There must be substantial support for the winding-up, just as there was for its establishment. An association will not be wound up without due regard to the interests of those involved in the association and the commons over which it has jurisdiction.
	In some cases, an association may be wound up to create a new association across a different grouping of commons or with completely different functions and representations of interest. The noble Duke recognised the possible need for such action in Committee. In such cases, it may well be entirely appropriate to transfer the assets of the old association across to the new one but, in other cases, it may not be appropriate to create a new association—if, for example, commoning activities ceased. In such a case, it is more likely that the property belonging to the association would be distributed among the participants of the association, in accordance with some generally agreed formula. Of course, that would happen only after the liabilities of the association had been settled.
	All the property of the association would not be transferred automatically to Natural England or some central government body. Similarly to liquidation for a company, those who had invested in the organisation would have a claim on any assets when it was wound up. The advantage of Clause 37, as we see it, is that it allows assets and liabilities to be transferred to a new association, if appropriate; to an existing commons association, if appropriate; or to any other person or body. We do not want to constrain that power, because it may be difficult to find an association willing to take on the assets, liabilities and responsibilities in question. There may be no neighbouring association established in the area and no prospect of an association being established in future. That is why we want maximum flexibility to transfer assets as best makes sense in all circumstances. That is why, although we absolutely appreciate the point behind the amendment, we cannot accept it and I invite the noble Duke to withdraw it.

Baroness Byford: My Lords, in moving Amendment No. 46, I shall speak also to Amendments Nos. 47 and 48 in the group. It is important that Part 3, particularly Clause 38, is tightly and correctly drawn so that it benefits everyone; whether they are people who want to access and to use the countryside as they do now or more than before or those who have to cope with land management of the commons. In Committee we had a lengthy debate about works on common land. My noble friend Lord Peel and the noble Lords, Lord Livsey and Lord Greaves, recognised the need for clarification in this part of the Bill. The Minister stated that the Government had tried to strike a balance, although he dismissed inserting the word "materially" out of hand. He did not care for it. In the mean time, I hope that he has thought more about it. I think that my trouble is that perhaps I am becoming too reasonable in this day and age, but there we are.
	In the light of what I shall say, I want the Government to consider inserting the word "materially" again because it is enormously important. In Grand Committee the Minister said:
	"The present construction of the clause is almost identical to the current provision made in Section 194(1) of the Law of Property Act 1925.—[Official Report, 14/11/05; col. GC 247.]
	I do not doubt that—I am sure that is correct—but one must remember that in 1925 there was no right of access, which obviously has now kicked into action following the CROW Act 2005.
	I should like to thank the Minister for his follow-up letter dated 24 November, but he did not refer to the creation of the CROW Act. As I have raised the matter again today, and it was not resolved in his letter, will the Minister consider again the reasons why I am putting these amendments forward? They are important and need to be determined. They operate together to try to bring a de minimus effect into the provisions of Clause 38, Prohibition on works without consent.
	The object is to restrict the definition of restricted works which materially impede access. To make that more acceptable and workable, we have created a new category for fencing by introducing it in Clause 38(2)(c) so that it is separated from works which prevent or impede access so as to create, in effect, an absolute prohibition and to take away the argument that it would be difficult to find whether fencing in practice impedes access in a particular case. The argument that the noble Lord made when he dealt with these provisions was that the wording simply reflected the provisions in the old law, which is why I raise this again.
	In Committee, my noble friend Lord Peel spoke of the need for fencing and ditching, and the construction of ponds and grouse butts—I could think of many other ideas—which may slightly impede, but technically do not impede, access in the way that some people might view this part of the Bill. We are trying to ensure that moors, particularly grouse moors, and, in general terms, whole commons, can be managed properly and successfully. We seek to minimise any potential acrimony which might be raised if this provision is not correct between those who access land as users, for whatever reason, and land managers. I beg to move.

Lord Bach: My Lords, I thank noble Lords for an interesting debate on Part 3, which is an important part of the Bill. Amendment No. 46 proposes the insertion of the word "materially" into Clause 38, and provides that only works that are a material impediment to access, together with those that prevent access, are covered by the controls on works. Amendment No. 47 provides that fencing would be a type of work that would always need the consent of the authority, as the amendment removes the test that the fence must prevent or impede access. Amendment No. 48 is consequential to Amendment No. 47.
	These amendments touch on the question of how we ensure that the controls on works cover only those works which prevent or impede access, and do not extend to works that do not. As a consequence, I understand precisely what the amendment is trying to achieve, and I agree that it is in everyone's interests for there to be clarity on the question of the works covered by the controls. It is certainly a different and better group of amendments than was tabled in Committee, and we certainly see no objection to part of it. Amendment No. 47 clarifies fencing as a type of works that should be covered by the controls in all circumstances. But we still have difficulty with the introduction of the word "materially", even if only in relation to works that impede access.
	This seems an appropriate moment to break off to answer the noble Lord, Lord Greaves, who asked the difference between "prevent" and "impede". A continuous fence around a common would prevent access, while a ditch or embankment would impede access. These are words that have been used for many years, as the noble Lord knows, and have not really caused problems. In shorthand, "prevent" means "stopping altogether", while "impeding" means "obstructing" and perhaps "stopping temporarily". There is a real difference between the two words.
	There is a raft of types of work that fall into the category of impeding, rather than preventing, access—for example, ditches, embankments, bollards and railings. It seems to us that the amendment might send misleading signals to those undertaking such works and as a result might encourage some works with a very significant impact on access being undertaken without consent. I do not want to repeat everything I said in Committee, but works that present no impediment to able-bodied people might impede the disabled. Other works might impede horse riders, those exercising common rights and, dare I say it, those who are lawfully allowed to drive on commons. The present construction of the clause ensures that all those issues are considered and do not get overlooked.
	I listened with great care to the points made by all noble Lords, but I shall refer particularly to the points made by the noble Earl, Lord Peel, during Committee. We share his view that common land needs to be managed effectively—we all share that view—and that works necessary for the proper management of the land that do not prevent or impede access to it should not be subject to these controls. The difference between us seems to be that the noble Earl believes that Clause 38 somehow changes the position in respect of the type of works covered by the controls, and goes further than previous provisions contained in the now famous Section 194 of the Law of Property Act 1925. While I accept entirely that the area of land to which the controls apply is modestly different, because Clause 38 applies to all registered common land, not only to land subject to rights of common way back in 1926, I do not believe that Clause 38 introduces any significant changes to the types of works covered by the controls. If there was some misunderstanding about the nature of the controls contained in the 1925 Act at the time, that is unfortunate, but we cannot allow that to dictate our decisions now.
	It may help the noble Lord if I explain that most of the works with which he is concerned do not in our view constitute works that would prevent or impede access. I wish to put that on the record. I will boldly assert that setting Larsen traps or crow traps does not fall within scope. Similarly, I cannot see that a scrape for lapwings is the type of works that would be caught by the controls in Clause 38. I would go so far as to say that constructing a small shooting butt on a very large common is also so slight in its context that, if it does impede access, it is likely to fall outside a de minimis test which the courts would employ in deciding whether to enforce against any breach of Clause 38.
	I emphasise that the reference to ditches, trenches and embankments in Clause 38(3)(c) is intended to add clarity, to make it clear that these are the types of works that may prevent or impede access. The Bill does not provide that all such works prevent or impede access: that will be a question of fact in each case. The maintenance of such structures—for example, the clearing of ditches—would not in my view be caught by the controls.
	The noble Earl, Lord Caithness, talked about frivolous challenges. We have heard that the controls in Clause 38 will be enforced more assiduously than before because Clause 41 enables anyone to go to court to enforce them. It has been suggested that this will lead to enforcement by members of the public or organisations in frivolous or vexatious cases. I do not accept that. First, experience shows that people rarely bring actions in court, even though they may have the power to do so. Court action still tends to be a matter of last resort. Secondly, the courts know very well how to deal with litigants who bring actions in respect of trivial matters. They may refuse to grant the order, or they may decline to award costs to the applicant, or they may adjourn consideration of the matter to give the respondent time to apply for consent for the works in question.
	We are told that actions will be brought to abate minor features such as shooting butts. That would be surprising to say the least. Even if they fall within the controls, we think that amenity organisations will have bigger fish to fry than such matters; unlawful fencing and buildings on common land are far more likely to be the target of action.
	As I have said, the scope of these controls differs very little from those contained in Section 194 of the Law of Property Act 1925. I do not accept the argument that we should move the goalposts in this Bill because people were previously able to undertake unlawful works without fear of enforcement. The noble Baroness referred to the letter I sent to noble Lords. I thank her for her kind comments about it. I wish to quote part of it that is relevant to this debate, which states:
	"I would like to clarify a misunderstanding about access. The Law of Property Act 1925 itself (in Section 193) introduced a public right of access to certain urban commons and manorial waste, with the option for landowners of granting access by deed over other common land; a right of access to other commons may also have existed under Schemes of Management made under the Commons Act 1899. De facto access was also available on many other commons. Our understanding is that section 194 was enacted as a political compromise"—
	they did it even then—
	"specifically to ensure that de facto access to rural commons (not otherwise subject to rights of access) was preserved by regulating the powers of the landowner to erect fencing or other physical impediments to that access, notwithstanding the absence of any legal right to enter on the common. Introduction of a right of access via the Countryside and Rights of Way Act 2000 has only changed the position inasmuch as the public have a legal right of access to a far greater area of land".
	Our case is that Section 194 was, even then, about protecting de facto access.
	However, we have also conferred on the national authority in Clause 43 a power to exempt works from the controls. That will enable us to introduce, if necessary, greater clarity where there is real uncertainty. I cannot give an assurance that we shall make orders to exempt any particular works—we shall come to that discussion a little later—but I certainly intend to consider the scope for exemption orders as part of our programme for implementing the Bill and bringing into force the provisions of Part 3.
	I hope my comments will, at least to some extent, allay noble Lords' concerns about minor works. In the light of those comments—I have chosen my words carefully for the record—I ask that these amendments be withdrawn.

On Question, Whether the said amendment (No. 46) shall be agreed to?
	Their Lordships divided: Contents, 98; Not-Contents, 137

Baroness Farrington of Ribbleton: This is a minor, technical amendment to Clause 38(9) that would remove "arising", which we now consider to be an unnecessary word. It adds nothing to the meaning of this subsection and its removal does not change the meaning or effect of the subsection. I beg to move.

Lord Bach: My Lords, Amendment No. 56 would remove the provisions that enable a national authority to consider an application for consent to undertake works under Clause 38 in circumstances where the works have been started or completed. The noble Duke, the Duke of Montrose, tabled an equivalent amendment in Committee. I gave an explanation then as to why we did not think it appropriate. That obviously did not satisfy him and his colleagues and I hope that I can do a little better this time.
	In our view, when works have been undertaken without the consent of the national authority under Clause 38, a sensible first step is to enable an application for such consent to be made. If no such application is submitted or if consent is refused, enforcement action can follow. This is not a transitional provision. Works undertaken while Section 194 was still in force could be the subject of an application under Clause 38 and that would then make them lawful.
	I should add that this provision does not take away any power that a landowner has to seek the removal of works undertaken without his consent, or any power that commoners have to seek the removal of works that adversely affect the exercise of their rights. The ability to consider a retrospective application relates only to the provisions of Clause 38.
	My officials currently accept applications in respect of works already started or completed, and I do not believe that that has caused any problems; nor am I aware that a specific power to accept a retrospective application is required but, to put the matter beyond doubt, we have included one in the Bill. I hope that that explains more clearly why we have taken the attitude that we have.
	I hope that the noble Baroness will be pleased with my attitude to her Amendment No. 57, which relates to the provisions in the Bill that amend Section 194 so that after the commencement of this Act any person would be able to take enforcement action against unlawful works undertaken while Section 194 was in force.
	We understand the point that the noble Baroness is making. We do not think that the enforcement provisions that we propose, and in particular the amendment to Section 194, is a retrospective provision in the true sense of the phrase, but we understand her concern. We are perhaps slightly moving the goal posts in respect of unlawful works undertaken before the Bill comes into force. Because of the way in which the noble Baroness and the noble Earl, Lord Peel, made their point, I am prepared to take this matter away for further consideration to see whether it is possible to come up with a suitable government amendment at Third Reading, but I make no promises.

Lord Livsey of Talgarth: My Lords, for the promotion of animal welfare it is important to be able to undertake works without consent when animals are suffering or would suffer if the works were not carried out. This is an essential insertion in the Bill. In it, we are supported by the National Farmers Union. There need to be facilities for routine tasks that are necessary to maintain the good health of the animals. There may also be animal health emergencies, such as foot and mouth disease, when it may be right to act rapidly to prevent the spread of the disease. We have seen examples of that in recent times. The words in the amendment are the words used in the Animal Health Act, and, if they are appropriate there, they are surely appropriate here.
	When reading Amendment No. 58 for the first time, I thought that it seemed extremely long and complicated, but, after reading it thoroughly, I see that it has important aspects that give clear guidance. In particular, it is good to see the definition of purposes repeated in subsection (4) of the amendment. It refers to the use of land, the exercise of rights of common, nature conservation and so on. Amendment No. 58 is extremely helpful. I beg to move.

Lord Bach: My Lords, I have now had translated the word that I was looking at. The fenced sections tend to be across what is described as new takes, also in-by land and enclosures, which are not common land. I think that the noble Lord and I, who agree on so much, will have to disagree on this.

Lord Livsey of Talgarth: My Lords, we will read carefully what the Minister said about our amendment on animal welfare. It seems to us that there are situations in which this should apply. It is a question of interpretation whether provisions in the Bill are adequate for—perhaps we should say—smaller activities, where for humane animal purposes it is necessary to bring animals into a space that has capacity for them to be examined and treated, if necessary by a vet. Indeed, it may be a question of life and death for the animal. So we shall read carefully what the Minister has said. We may look at this again and have discussions with our colleagues in another place about it. In the mean time, I beg leave to withdraw the amendment:

Baroness Farrington of Ribbleton: My Lords, Amendment No. 61 provides that the powers in Clause 44, which allow a national authority to amend by order local or personal Acts, can be used only in respect of Acts passed before this Act.
	That responds to a concern expressed by the noble Baroness, Lady Byford, in Grand Committee that, otherwise, that power could be used to amend Acts passed in future. That would clearly be inappropriate. Amendments Nos. 72 and 74 make similar changes to other provisions in Clauses 51 and 52, which give the national authority powers to an end local or personal Acts by order. We hope that the noble Baroness is pleased. We are grateful to her for her assistance. I beg to move.

Lord Greaves: My Lords, this is another issue to which we have not really got to the bottom yet and there is no satisfactory solution in the Bill. It concerns unclaimed commons—land that has been registered as common land that has not been claimed by any owners. Some of it may be small pieces of land that have effectively been abandoned; others may be commons that are satisfactorily operated as commons, but no one knows who is the owner. There is a whole range of them with different circumstances and not all of them are in crisis. However, there is a significant number of unclaimed commons out of the 2,000 in England, which amount to 4,000 hectares and 500 in Wales, which amount to more than 21,000 hectares where there is a significant problem.
	We had a long discussion about this in Grand Committee, where I tabled amendments proposing that ownership of unclaimed commons could be transferred to local authorities by various technical means. The Minister was very persuasive in suggesting that that was not the way around the problem and would lead to all sorts of complications—not least a problem with the Human Rights Act 1998. Nevertheless, there is a problem. Many commons are neglected, overgrown and crying out for positive management.
	In Grand Committee, the Minister suggested that the main answer to that lay in the powers within the Bill to deal with unlawful incursions on commons, unlawful encroachments of the sort that we were discussing a few groups ago. Where the problem is one of unlawful incursion, of damaging development or works on a common, it can indeed be dealt with in that way. In that sense, the Minister was right. But in many cases, the powers under Clause 45 will be insufficient. In replying to the debate in Grand Committee, the Minister said—and this gets to the nub of the problem:
	"We believe that the real problem underlying unclaimed land is not that there is no known owner but that the lack of clarity about ownership can give rise to ineffective management. We therefore concluded that the problem could be tackled by enhancing the powers for management of unclaimed land and, in addition to Clause 43 and schemes of management under the Commons Act 1899, to give commons associations established under Part 2 the power to manage unclaimed commons"—[Official Report, 14/11/05; GC 277.]
	All that will be extremely helpful, useful and positive, but there will still be commons that are unclaimed, in a mess and that need management that will not be covered by any of those provisions.
	If the Government will not accept what I propose in Amendment No. 61F, what do they think could be done? How will those commons be tackled? It is not a question of unauthorised encroachment. There are no management schemes under the 1899 Act and there is no commons association. The problem is one of management. It is highly likely that it is a problem of management of the vegetation—it is overgrown with brambles, gorse or bracken. It might have lots of nasty plants growing on it, like ragwort, dock and other injurious weeds of that nature. Indeed, it may be causing a problem in the locality because it is invested with Japanese knotweed or other such unpleasant aliens.
	What I propose in Amendment No. 61F is that where those conditions apply—where no dissolution is available—the local authority has the power not to take over ownership of the common but to do what the Minister said in Committee ought to happen: to exercise any rights of management of the land. As far as I can see, that is not already in the Bill. Amendment No. 61 E merely gives the appropriate national authority instructions to issue guidance to local authorities on the exercise of their powers to take action over unclaimed land. I know exactly what the Minister will say to me in response, because it is what she said to me in response to guidance on action over unauthorised incursions on common land, so I tell her in advance that I accept what she says about that. If she says it again positively here, I shall be delighted. Some of us will be watching and, if the guidance does not appear in a satisfactory form, we will use the appropriate methods to hound the Government until they provide that guidance.
	The real question here is, who will manage the vegetation, especially, but also the other aspects of unclaimed commons where there is no owner and where the other available options either do not apply or are inappropriate because there is no unauthorised incursion? I look forward to hearing the Minister's reply to an important question that is so far unanswered. I beg to move.

Lord Greaves: I think that the arguments behind this amendment have been dealt with thoroughly. I shall therefore not move the amendment.

Baroness Byford: My Lords, I am grateful to the Minister for his comments on Amendment No. 79, which is grouped with these amendments. He indicated in Committee that he would come back on the issue but, unfortunately, sometimes these matters slip through the net. We look forward to hearing whether he thinks the amendment is necessary. If he does not think it is needed we may return to it. We have plenty of time before Third Reading, and I hope that the Minister will respond to our concerns.
	On behalf of my noble friend Lord Peel I thank the Minister for responding to issues that he raised during in Committee. I know that he is grateful to the Government for addressing those matters.
	As these are the last amendments—I shall obviously not be moving Amendment No. 80—I thank both Ministers for how they have conducted the Bill through Report stage.

Lord Livsey of Talgarth: My Lords, I thank both Ministers for how they have taken the Bill through so far. We have won some, drawn some and lost some, which happens with a Bill of this kind. I am fascinated that in the last group of amendments the Commons Commissioners are mentioned, albeit in a historical sense, but they were operative at the time of the registration period and have been so up until now. Certainly there is food for thought there. I thank the Ministers for their co-operation.

Baroness Farrington of Ribbleton: moved Amendments Nos. 76 to 78:
	Page 32, line 30, at end insert—
	"(3A) The circumstances in this sub-paragraph are that—
	(a) the provisional registration was referred to a Commons Commissioner under section 5 of the 1965 Act;
	(b) the Commissioner determined that the land was not subject to rights of common and for that reason refused to confirm the provisional registration; and
	(c) the Commissioner did not consider whether the land was waste land of a manor."
	Page 33, line 32, after "registration" insert "of the land as common land"
	Page 34, line 12, after "registration" insert "of the land as a town or village green"
	On Question, amendments agreed to.
	[Amendment No. 79 not moved.]
	Schedule 2 [Registration: transitional provision]:
	[Amendment No. 80 not moved.]
	Schedule 3 [Works: supplementary amendments]:

Lord Evans of Temple Guiting: My Lords, in moving the draft Civil Partnership (Judicial Pensions and Church Pensions etc.) Order 2005, I shall speak also to the remaining orders standing in my name. I am satisfied that the provisions of these statutory instruments are compatible with the European Convention on Human Rights.
	Your Lordships will recall debating a number of statutory instruments since the Civil Partnership Act obtained Royal Assent. The last time was in October, when I set out that there were five affirmative orders still to be debated by the House. Four of them are before us today. The remaining order is the Civil Partnership Act 2004 (International Immunities and Privileges, Companies and Adoption) Order 2005. It is made under Section 259 of the Act amending the International Organisations Act 1968, the Companies Act 1985 and the Adoption and Children Act 2002. With that order, which I understand was laid before this House today, we are confident that we will have made all the changes necessary to complete the implementation of the Civil Partnership Act.
	I am aware that this has at times seemed like an endless raft of legislation, but each statutory instrument has been essential in delivering the wide-ranging and progressive legislation that we agreed during the passage of the Bill. The orders and regulations before us are no different; they represent a varied set of changes, and I will summarise the main issues this evening.
	First, I turn to the Civil Partnership (Judicial Pensions and Church Pensions, etc.) Order 2005. The order is made under Sections 255 and 259 of the Civil Partnership Act 2004. Noble Lords will recall that we debated at length scheme members' rights to receive survivor pensions for civil partners. Amendments which this House approved on 11 July have already been made under the Pension Schemes Act 1993 to require contracted-out pension schemes to provide surviving civil partner pension benefits in respect of service accrued from 6 April 1988. In accordance with this requirement, the order provides that the judicial pension schemes will provide survivor benefits for civil partners based, as a minimum, upon members' contracted-out rights accrued since 6 April 1988.
	In addition, where the respective judicial schemes currently offer surviving spouses' pensions on more preferential terms than the minimum required of contracted-out schemes, the order amends the schemes so that the same treatment is offered in respect of surviving civil partners' pensions. Where the existing provisions of the schemes treat widows and widowers differently, civil partners are treated in the same way as widowers.
	Pension changes are necessarily detailed and technical. The draft order modifies both the Judicial Pensions Act 1981, which continues to apply to a number of office holders appointed prior to April 1995, and the Judicial Pensions and Retirement Act 1993, which applies to those appointed after that date, as well as to those who have opted to transfer from the scheme under the 1981 Act into that created by the 1993 Act.
	The draft order also modifies the subordinate legislation of those pension schemes. For the most part, the order simply adds appropriate references to civil partners and civil partnerships to the existing provisions relating to surviving spouses. The remaining amendments provide transitional arrangements for existing members of the judiciary and for the calculation of the contributions required from them. Similar changes are made to the separate legislation affecting those judicial office-holders in Northern Ireland whose benefits fall to be determined under older legislation.
	The changes do no more than ensure the equal treatment of civil partners under the judicial pension schemes. The order also amends Church legislation in relation to pensions and certain other matters, such as the provision of residences to retired clergy, to ensure that civil partners are treated in the same way as spouses. In particular, Schedule 7 contains amendments to the Church of England Pensions Scheme established under the Church of England Pension Regulations 1988 and the Church of England Funded Pensions Scheme established by trust deed under the Pensions Measure 1997. This is to ensure that such provision complies with legal requirements in relation to civil partners' pensions, in particular those relating to contracting out, and, for future service under the funded pensions scheme, the Employment Equality (Sexual Orientation) Regulations 2003.
	It is, of course, the convention that the Government do not legislate for the Church of England without its consent. These provisions are being included at the request of the Church of England, having been approved by the House of Bishops and the Archbishops' Council.
	I shall now turn to the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005. These regulations are made under Section 219 of the Civil Partnership Act, which gives powers to make provision in relation to the jurisdiction of the courts in England, Wales and Northern Ireland to hear civil partnership proceedings. It also contains powers to make provision for the recognition of orders made in other member states relating to civil partnership proceedings. In particular, the regulations make provisions on jurisdiction of the courts in England, Wales and Northern Ireland based on the approach taken in matrimonial matters as set out in the council regulation known as Brussels II Bis. This council regulation deals with divorce, annulment and legal separation in matrimonial matters. It does not cover civil partnerships. In order to ensure consistency in relation to civil partners, the regulations make provisions corresponding to the council regulation.
	The purpose of the recognition parts of these regulations is to enable civil partners who obtain a dissolution, annulment or legal separation in another member state to have the same recourse as married couples to resolve issues arising from relationship breakdown in this country. However, I should make it clear that there is no obligation on other member states to recognise our civil partnerships. Indeed it is a matter for each member state to decide whether it wishes to recognise another country's same sex relationships.
	The third draft order I shall speak to is the Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005. The Civil Partnership Act made a substantial number of amendments to primary legislation to ensure parity of treatment between spouses and civil partners. However, power to make further consequential and supplementary amendments was included in Section 259 of that Act. This order invokes the powers under that section of the Act.
	The amendments in the order are, for the most part, minor and consequential. I shall take each in turn. The order amends the Family Law Act 1986 to enable civil partnership proceedings to be treated in the same way as matrimonial proceedings. The amendments were withdrawn from the Act before introduction as it became clear that alterations to the same provisions of the Family Law Act would need to be made to implement council regulation Brussels II Bis before the Civil Partnership Act could come into force. It seemed sensible to amend the Family Law Act as a consequence of the council regulation first and make the amendments in respect of the Civil Partnership Act in this regulation once the Family Law Act provisions were settled. The Matrimonial and Family Proceedings Act 1984 is amended to enable the transfer of family proceedings from a High Court to a civil partnership proceedings county court. A civil partnership proceedings county court is the name given to those courts which will be given the jurisdiction to hear civil partnership proceedings. Finally the Housing Act 1996 is amended to enable a deceased tenant's civil partner to succeed to an introductory tenancy in the same way as a deceased tenant's spouse can do at present.
	Finally I shall speak to the Civil Partnership (House of Commons Members' Fund) Order 2005. The trustees of the House of Commons Members' Fund have the power to make discretionary payments to former Members of the House of Commons, their widows, widowers or orphan children, having regard to their circumstances. So, for example, the trustees might choose to make a one-off grant to facilitate a minor home adaptation for an elderly widow whose income is small.
	The Civil Partnership Act 2004 amended the House of Commons Members' Fund Act 1948 with the intention of extending the range of potential beneficiaries of discretionary payments to surviving civil partners of persons who have been Members of the House of Commons. However, an amendment to the House of Commons Members' Fund Act 1939, which provides an overall definition of the categories of potential beneficiaries of payments from the fund, was omitted in error.
	This order, made in exercise of powers conferred by Section 255 of the Civil Partnership Act, corrects the omission and will ensure that trustees will have the power to make discretionary payments to surviving civil partners as originally intended. I beg to move.
	Moved, That the draft order laid before the House on 17 October be approved [6th Report from the Joint Committee]—(Lord Evans of Temple Guiting.)

Lord Evans of Temple Guiting: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
	Moved, That the draft regulations laid before the House on 27 October be approved [7th Report from the Joint Committee].—(Lord Evans of Temple Guiting).

Lord Evans of Temple Guiting: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
	Moved, That the draft order laid before the House on 13 October be approved [6th Report from the Joint Committee].—(Lord Evans of Temple Guiting).